Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

KrystianBoinoHoban Boino Solicitors

Robin McKennaIBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021053-001

08/08/2018

The Respondent Company is a contract bottling, manufacturing and blending company based in Enniscorthy, Co. Wexford.The Complainant was employed as a Blending Operator with the Respondent Company for almost twelve years from the 27^th of August 2007 until the 13^th of July 2018 when she submitted a letter of resignation.

The Complainant submits that she was constructively dismissed from her position when she was subject to verbal and physical abuse from member of the senior management and furthermore the Respondent failed to respond adequately to her complaint of verbal and physical abuse.

It is the Complainants assertion that the company’s failure to react to this complaint and provide her with a safe work environment based on trust confidence and appropriate relationships resulted in her inability to continue in their employ.

The Complainant was a dedicated and valued employee with the Respondent company for almost twelve years. She was a highly regarded member of the team and did not have any disciplinary issues throughout the duration of her employment.

The Complainant submits that she was forced to resign from her position within the company following two serious incidents of verbal and physical abuse by a Senior Manager, Ms. D, and the company’s subsequent failure to address her complaints in this regard.

1. The First Incident – June 2017

The first incident took place in June 2017 when the Complainant was subjected to an upsetting incident of verbal abuse by Ms. D. The incident took place during a production meeting when Ms. D became irritated and raised her voice and asked the Complainant if she knew what she was doing. The Complainants colleague interjected and told Justyna to explain the technical reasoning as Ms. D did not understand the process and she felt there was a miscommunication taking place. However, Ms. D did not want to hear any explanation. She then proceeded to throw the colleague, Ms HB. out of the meeting.

This incident was reported to the Human Resources Manager, but no action was taken in relation to Ms. D’s inappropriate behaviour. The Complainant maintains that an informal meeting took place between her and The HR manager. A separate meeting also took place between Ms. HB and The HR manager following this incident. It was agreed that no formal action would be taken as the Complainant wanted to give Ms. D a chance to build up positive relations within the company.

The second and more serious incident took place on the 28^th of March 2018 during a production meeting where the Complainant was the victim of a verbal and physical attack.

The Complainant attended a meeting with several other members of staff and management. It was the usual meeting, to plan the production for the rest of the week. Ms. D starter to question Complainant was she was doing. Complainant started to explain that she has to blend product for two production days and indicated her schedule was much stretched. Ms. D started shouting at Complainant and said to Complainant: “You are difficult”; “You has always been difficult”. Complainant asked Ms. D to stop shouting at her. Mr. D however continued and made further comment that Complainant is “unhelpful”. Complainant asked Ms. D again to stop shouting and at that stage she was thrown out of the room with loud words “get out”, get out”. When Complainant was going towards doors Ms. D physically pushed Complainant towards the door and then closed the door of the office behind Complainant back.

This incident was again reported to the HR manager. The Complainant again felt no support from Human Resources in relation to this issue and noted an unwillingness to address the behaviour of Ms. D as a member of senior management and also as an investor in the company.

The Complainant was off work on stress related sick leave from the 29^th of March 2018 up until her resignation on the 13^th of July 2018.The lack of response from Human Resources led to the Complainant submitting a formal written complaint to the company on the 16^th of April 2018. As per the company Grievance procedure

There was no response from the Company to this complaint and the Complainant followed up with two emails, one of the 27^th of April 2018 and the second on the 9^th of May 2018.

A meeting was then held on the 16^th of May with the Complainant, the HR manager and Ms Coulet. The Complainant was confused by the purpose of this meeting as it did not come within any step of the grievance procedures set out in her contract of employment. Especially there was no indication that any investigation to this serious matter was taking place. No progress was made as a result of this meeting.

The Complainant then referred the matter to senior management on the 29^th of May 2018 as per the company procedure. Then, on the 6^th of June, an email was received by the Complainants representatives from the Human Resource Manager which stated that the ‘normal course of investigating a grievance is not practical due to family relationships and a small management team’. Such an explanation for the lack of response and utilisation of their own procedures was both baffling and extremely upsetting to the Complainant. IT was at that stage around 10 weeks since the incident occurred.

That followed with a series of correspondence in which Complainant representative was seeking explanation in relation to the delay in dealing with grievance and failure to observe company own grievance policy. That correspondence cumulated in a mediation attempt which failed with a stark comment included in the Respondent letter that “Ms. D “strenuously refutes any allegation of verbal or physical assault [with you] during the meeting on 28^th March 2018”.

The Complainant tendered her resignation on 13^th July 2018.  Two further letters were exchanged following that resignation.

The Complainant was verbally and physically abused by Ms. D in front of co-workers which understandably caused a huge amount of hurt and this was only exacerbated by the Company’s failure to respond to her verbal or written complaint in any way for so many weeks.

The company did not follow their own grievance procedure and no investigation whatsoever took place in relation to this incident. Ms. D, is a member of the company’s Senior Management team. It appears that there is a pattern of unwillingness to challenge her authority and she was allowed to bully and intimidate the Complainant to an extent where she no longer felt able to continue her career in that company. Those comments made, in such circumstances of explaining production process, in front such number of other co-workers called clearly into question Complainant capability. She was thrown out of a production meeting when she was explaining (as 12 years experienced worker) the production.

There have been several other staff members who have had issues with Ms. D and even left the company has a result of the culture created by her in the workplace. The company were on notice of the behaviour of Ms. D and indeed there were several complaints made about her behaviour towards junior staff.

Legal Arguments

The Complainant is seeking adjudication under section 8 of the Unfair Dismissals Act, 1977 on the grounds that she was constructively dismissed from her employment.

The act envisages two circumstances in which a resignation may be considered a constructive dismissal, the contract test and the reasonableness test. This complaints argument is submitted on the basis of both: breach of expressed and implied terms of contract and also on reasonableness test. 

It is further submitted that the resignation was justified in the circumstances as her employer had committed a breach of contract and this breach was serious enough to warrant her resignation. Her resignation was justified by her employer’s behaviour which created an intolerable working environment for the Complainant and damaged the relationship of mutual trust and confidence beyond repair.

The Complainants contract of employment dated 27^th of August 2007 outlines a grievance procedure that was not followed, and their conduct therefore shows that they no longer seek to be bound by her contract of employment, leaving her no other option but to resign from her position. In terms of application, it was held in Atr Restoration Limited v Marek Zalewski (UDD1818) that ‘it is not for this court to make findings as to whether or not the Appellant was bullied or harassed/The Court simply draws the factual conclusion that no investigation of such complaints ever took place’. Therefore, it will be argued that the company’s failure to follow the internal grievance procedure is of itself a sufficient breach of contract.

The case of Byrne v Furniture Link International Ltd. [2008] ELR 229 is also relevant. Here it was held that the employer’s failure to follow its own internal grievance procedures when dealing with unreasonable behaviour within the company could justify the employees subsequent claim for constructive dismissal

In respect of the exhaustion of internal measures, the Complainant made valiant efforts to have this matter addressed by her informal and formal complaints, follow up emails, referral of complaint to senior management (as per grievance procedure) and her willingness to attend meetings with HR.

The decision of Kennedy v Foxfield Inns Ltd. t/a The Imperial Hotel [1995] ELR 216 is instructive due to the position of authority held by the perpetrator in question. In this case the tribunal found in favour of the claimant and stated;

‘The question for the Tribunal is to decide whether the claimant’s decision to terminate her employment was reasonable. We are satisfied on the evidence that, by virtue of the type of conduct of which she had complained, coupled with the status of the perpetrator of that conduct, the claimant’s situation in her employment became intolerable to the extent that she was left with no option but to terminate her employment’.

The complainant will also be relying on the case of Courtaulds Northern Textiles LTD v Andrew [1979] IRLR 84 where the EAT found that ‘There is an implied term in a contract of employment that the employers will not without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties’. Complainant was told of being difficult, of being unhelpful in front of co-workers attending the meeting when she was explaining the specifics of production and explaining her schedule. On the top of that she was thrown out of that meeting and pushed behind the door and the door closed behind her. Clearly relationship, trust and confidence were destroyed and moreover Complainant capability to perform her work called into questioned in a brutal manner.

It is submitted that no objective consideration of the conduct of Ms. D or thesubsequent response of the Respondent employer could find the behaviour to be reasonable in the circumstances or Complainant final reaction unreasonable.

To find the Complainants resignation unjustified would be to condone a system of employment that allows the bullying behaviour of Senior Management to be ignored to such an extent that a valued employee is left with no other choice but to resign.

The case before you today concerns a claim by the complainant under section 8 of the Unfair Dismissals Act, 1997 wherein she alleges that she was constructively dismissed by the respondent.

The fact of dismissal is in dispute. It is the Company’s position that it did not dismiss the complainant but that she resigned voluntarily of her own volition and that Donohoe Drinks Company neither breached her terms and conditions of employment nor did it act unreasonably such as to allow her to seek relief under the Acts for constructive dismissal.

It is the Company’s position thattThe complainant did not utilise internal procedures before or after her resignation when she was requested to do so. Therefore, it is clear, regardless of the efforts the Company went to in addressing her resignation, the complainant had already made up her mind that she was leaving. It is also clear that she had no intention of ever returning to the Company or meaningfully engaging in order to bring whatever issues she may have had at that point to a satisfactory conclusion. This is borne out by the complainant obtaining alternative employment prior to mediation conducted by an external party and her subsequent resignation on the same day.

The respondent therefore respectfully requests that the Adjudicator reject this claim.

The complainant commenced employment was on 27 August 2007 as a Blending Operator. The complainant’s normal working hours were 39 per week working Monday to Thursday (8.00am to 5.00pm) and Friday (8.00am to 1.00pm) with a thirty -minute unpaid lunch break.

The complainant resigned from her employment on Friday 13 July 2018 and commenced her new employment on Tuesday 17 July 2018.

The complainant attended a daily production meeting on Wednesday 28 March 2018. This meeting was being chaired by Ms. D as the Production Manager was on leave. During this meeting Ms. D requested the complainant to concentrate on production activities due to the upcoming Easter weekend and to hold off on conducting a stocktake. The complainant refused. Ms. D repeated the request regarding production and that she would contact the company and advise them of a change in timing for the stocktake. Again, the complainant refused, raising her voice at the same time. After this request was refused a third time, Ms. D said that she would discuss this with the complainant after the meeting. Unfortunately, the complainant continued arguing with Ms. D who, after asking her for a second time to discuss the matter following the meeting, requested the complainant to leave the room.

On 29 March the complainant submitted a medical certificate for work related stress.

Having attempted to contact the complainant on a number of occasions on her mobile phone, the HR Manager sent an email to the complainant on 2 May asking her to make contact. The complainant returned the call the same day. While The complainant indicated she wasn’t yet fit to return to work, she gave no indication as to why she was out on sick leave nor did she raise any grievance over the telephone.

On 9 May the HR manager received an email from the complainant seeking an update to her complaint. This email contained two other emails dated 16 and 27 April which had been sent to The HR manager but never received by her. These emails were the first indication of any complaint having been made and were also the first instance of any allegation of physical contact having been made by Ms. D at the meeting on 28 March 2018.

The HR manager responded to say that she was off site for a few days but would follow up with her the following week.

On 14 May the HR manager contacted The complainant to arrange a meeting to discuss her complaint. It was agreed for this meeting to take place on 16 May at 11.00am.

The HR manager met with the complainant on 16 May. The complainant had a friend with her while Ms C (Quality and Systems Lab Manger) attended with The HR manager.

During this meeting the complainant acknowledged that Ms. D had agreed to contact the Company regarding the stock take. The complainant also acknowledged that the use of language of “physical attack” wasn’t an accurate description. A number of options to resolve the matter were put to the complainant including mediation, a meeting with Ms. D and also looking at any suggestions the complainant may like to include. It was agreed that no further action would be taken for two to three weeks until such time the complainant was ready.

The complainant sent an email to Mr E (Managing Director) on 29 May 2018. In this email she summarises communication to date. She also refers to the meeting that took place two weeks earlier to say that she was “not sure what was the purpose of the meeting”. The complainant forwarded this email to The HR manager on 2 June 2018.

The HR manager responded to this email on 5 June to advise her that she would be in contact with her the following day regarding a formal procedure as opposed to the agreed informal procedure which had been discussed and agreed at the previous meeting on 16 May.

The HR manager sent an email to the complainant on 6 June. In this email The HR manager suggested obtaining the services of an external mediator to try to resolve the issue. Regarding this complaint The HR manager said that:

“In the normal course of investigating a grievance, it is referred to senior management. However, that is not practical due to family relationships and a small management team here in Donohoe Drinks Enniscorthy.”

The HR manager advised the complainant that she would be in contact with her over the next few days regarding the mediation process. On 7 June The HR manager sent an email to the complainant to update her on progress regarding mediation. She advised the complainant that she had obtained details of three mediators and would be in contact with her again after following up with them regarding availability. The HR manager sent a further update to the complainant on 13 June to let her know that she would be seeking approval from management the following week in order to “move the process forward quickly”. The complainant responded with “Thank you for keeping me updated. I am appreciated [sic] for your help.”

On 18 June The HR manager sent an email to the complainant. In this email she wrote:

“I’ve sourced an employee relations consultancy firm, based in Dublin, to undertake to address your grievance. This firm are highly reputable and have no previous connection with the Donohoe Drinks Company or its directors and managers.

            The process will involve a one-to-one meeting between you and the mediator and a separate one-to-one meeting between Ms. D and the mediator, to take place off the company premises – the company will book a meeting room in a local hotel. The consultancy firm suggests that these meetings could happen in a morning and then, on that afternoon, the mediator would meet with both you and Ms. D in a joint meeting to work through the issues raised and move to a resolution. Before I go ahead and make arrangements, I want to check with you regarding availability for a meeting etc.”

The HR manager received a telephone call from the complainant on 19 June. In this call she told the HR manager that she was happy to proceed with the mediation and was also appreciative of the fact that it was being conducted locally and not in Dublin. She informed The HR manager that she wasn’t available for mediation that Friday due to a school sports day but would be available on any other day as she would be able to arrange childcare.

On 20 June The HR manager received a letter from solicitors acting on behalf of the complainant. In this letter the solicitors refer to the medication:

“With all due respect we fail to see how mediator appointed in such a manner can deliver any fair and reasonable solution. We are at a loss to understand since when mediators do investigations. You may respond to us immediately and advice in relation to those queries.

We further request that you advise by return what has happened to the company grievance procedure which clearly at Stage 1 provides for an investigation of the grievance. We request that you provide all the investigation material gathered to date.

We also require you to advice immediately why Stage 4 of the Grievance Procedure is not implemented which provides that the parties “agree to refer the issue to an appropriate third-party arbitration.”

The HR manager received further correspondence from the complainant’s solicitor on 29 June. In this letter The HR manager was advised that the complainant would be fit to return to work from Tuesday 3 July.

In her response on 2 July, The HR manager wrote:

“We are very pleased that the complainant is fit to return to work. She is a highly valued employee of this company and all efforts to date by the company have been to encourage her return to work.

In order to facilitate the complainant’s return, we would again suggest that the services of a professional mediator be used. The complainant had warmly agreed to this on 19 June last and we engaged an experienced professional mediator to meet both parties. However, we have not been able to progress this as we have been unable to communicate directly with the complainant in the interim, as directed by you in your letter of 20 June 2018. Alternatively, if the complainant wishes to nominate a professional independent mediator, the company is agreeable to looking at this.”

Following further correspondence from the complainant’s solicitor on 3 July which reiterated the allegation of “physical assault”, The HR manager responded on 5 July 2018. In her letter she wrote:

“A meeting was arranged for 16 May, at which the complainant attended accompanied by a friend, and at which Ms C and I were present. The issues raised in the complainant’s email were discussed, the meeting was positive, and it was clearly agreed by the complainant that informal resolution was the best way forward, as both The complainant and Ms. D are coming from stated positions of mutual respect. Consequently, the company would facilitate a meeting between both parties, but not until the complainant felt in a position to do so and I would contact her in early June again to discuss this.

The complainant emailed me on 29 May regarding her complaint and asking that it be referred to senior management. As The complainant’s position seemed to have changed and informal resolution appeared to be no longer an option, it was felt that referral to senior management was impractical due to family relationships within the company. Consequently, it was agreed with the complainant that the services of an external mediator would be employed to find an acceptable solution. The process of mediation was clearly explained to the complainant in my email of 18 June and the complainant phoned me on 19 June to very positively express her agreement to the mediation process.”

                The letter continued:

“The company feels that independent professional mediation is the best resolution to facilitate the complainant’s return to work. The complainant is a highly valued employee of this company and all efforts to date by the company have been to facilitate her return to work. If The complainant wishes to nominate an alternative professional mediator, the company are happy to discuss this.

  As a gesture of goodwill, we are prepared on a one-off basis to resume the complainant on the payroll, on the basis that she reciprocates this goodwill and participates in mediation. To this end, we have provisionally booked the above-mentioned mediator for Friday 13 July next to take place in the … and we hope that the complainant will participate in this process.”

In a response on 6 July, The complainant’s solicitor wrote:

“It is absolutely incorrect to state that our client agreed to informal resolution during meeting of 16 May. That was clearly stated by our client in her email of 29 May, 5 June 2018. Consequently, our client position has never changed.”

The letter continued:

“Please advise us the name of the mediator and the proposed procedure and agreement if you expect from us a discussion [sic] and proposal of alternative mediator/confirmation of your choice.

Without prejudice to all above our client is in a position to participate in mediation. We need urgently the name of the mediator and proposed procedure and proposed agreement. Furthermore, the participation in mediation is based on understanding that the company will cover all costs of same.”

By way of an email response on the same day, the information sought by the complainant’s solicitor regarding the mediator and process was provided. By way of email received on 9 July, the complainant agreed, “in principal to the mediation being conducted by … from … solutions”.

The HR manager sent an email to the complainant’s solicitor on 10 July with a summary from the mediator as to how the mediation would proceed:

“I like to meet with both parties individually as a pre-mediation process so that I can gain an understanding of the issues they want to address and explore outcomes in an environment that is comfortable. This also gives the parties an opportunity to get to know me and gain some comfort as to how I will manage the process. It also allows me to gain an understanding of how best to manage the conversation going forward. Usually I spend a few minutes with the first person prior to opening a joint session to clear up any issues that arise in the second meeting. Once I bring people together I manage the conversation, usually this begins as a two-way conversation with me but generally progresses into a conversation between the parties.

I will of course be advising the parties of the ground rules for the day and seeking agreement on them. I will also ensure that they each know how to manage in a situation where they feel a private conversation with me would be useful.”

By way of a separate email on the same date The HR manager confirmed that the complainant had been put back on payroll with effect from 3 July.

In a letter dated 10 July, the complainant’s solicitor wrote to the Company. In his letter he wrote:

“We note with some surprise, there seems to be no mediation agreement and procedure and the correspondence suggest that some arrangements are made between mediator and the respondent.”

By way of a response, an email from the mediator was forwarded to the complainant’s solicitor:

“I am at a loss to enlighten you as to why Mr B is surprised. The mediation model I use for in-house disputes such as this is based on my experience gained while working for the Equality Tribunal and it is the same model used now by the WRC. The matters Mr B refer to normally are used in different more legalistic and often commercial scenarios. I shall introduce ground rules when I meet with the parties, asking them to agree them. A formal agreement to mediate is not required. The mediation agreement will hopefully be the end result assuming resolution is achieved.

I am unclear what is being referred to as “some arrangements are made”. If it relates to my being retained to conduct the mediation, then I have no difficulty. If, however, it refers to some suggestion of collusion on my part then I would have to object to this in the strongest terms. For now, I am content to proceed with this process in the hope that the parties and anyone supporting them have agreed to engage in mediation and genuinely want to resolve the issues between them.”

The mediation took place as agreed on 13 July 2018. Unfortunately, shortly after 8.00pm that evening, the complainant’s resignation was received by the Company.

The HR manager wrote to the complainant on 18 July 2018. In this letter The HR manager wrote:

“You are a valued and skilled employee of the respondent and I would earnestly urge you to reconsider your resignation. We genuinely want you to return to work here and will endeavour to support you, as has always been the case during your 12 years here. You are held in high esteem by management and this is evidenced in recent times by Ms D giving you a substantial pay increase in August 2017, along with an offer to pay for you to do a science degree, an offer of which you expressed your sincere appreciation.

Since you were certified fit to return to work on 3 July 2018, the company has resumed you on payroll and, indeed, will continue to pay you if you withdraw your resignation and agree to work towards a solution. As mediation has not been successful, this would allow us time to organise and agree with you an independent external investigator, possibly followed again by mediation when such investigation is complete.”

The response received was by way of a letter dated 19 July from the complainant’s solicitor where the company was asked to “…refrain from [sic] issuing any more correspondence directly to our client” and to issue the complainant her P45.

Legal Argument

Section 1 of the Unfair Dismissals Act 1977 defines dismissal in relation to an employee as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

It is the position of the Company that to ground a claim in the first instance of constructive dismissal, the complainant must exhaust all internal procedures. It is clear, regardless of the efforts the Company went to in addressing her complaint, the complainant had already made up her mind that she was leaving and had taken action to obtain alternative employment.

In accordance with established principles adopted by the WRC, the Labour Court, the EAT and the Courts, there exists a burden on the complainant to demonstrate that:

a)       The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b)      The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign

It is only when either of the above criteria have been met that the employee is entitled to terminate their contract of employment. It is the Company’s position that neither criterion has been met.

In respect to reasonableness, it is the Company’s position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal procedures. This is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

It is only following the exhaustion of “all internal procedures formal or otherwise” that The complainant could legitimately lodge a claim for constructive dismissal. This is well established in the cases cited below. In this case the complainant neglected to exhaust internal procedures prior to submitting her resignation. Because of her failure to do so, it is the Company’s position that this failure proves fatal to her case and that her claim for constructive dismissal should be dismissed.

In the case of Conway v Ulster Bank, UD 474/1981, which reinforces the importance of exhausting internal procedures prior to submitting your resignation, the Tribunal stated that it wasn’t for them to decide whether using the grievance procedure would have produced a decision more favourable to the Appellant and without substantially utilising the procedure the Tribunal deemed that the Appellant did not act reasonably in resigning:

“the Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible’.

In Travers v MBNA, UD720/2006, the Tribunal reiterated the importance of ensuring that all procedures are exhausted by the employee before their decision to resign with the employer is deemed reasonable in all the circumstances and therefore, constructive dismissal is established:

“We however, find that the claimant did not exhaust the grievance procedure made available to him by the Respondent and this proves fatal to the claimants case […] In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair’

Based on the above, it is clear from the above cited case that the complainant failed to exhaust “all internal remedies” before submitting her resignation.

The complainant has failed to assert her entitlement and reasonableness to resign her position. The fact that the complainant obtained employment with another employer prior to mediation indicates that she had her mind set to leave and arrangements in place to cover that eventuality and was contrary to the ethos of mediation referred to in the mediator’s email where she wrote:

“I am content to proceed with this process in the hope that the parties and anyone supporting them have agreed to engage in mediation and genuinely want to resolve the issues between them.”

The above is further demonstrated in the matter of Terminal Four Solutions Ltd v Rahman, UD 898/2011, which states:

“However, the burden of proof rests on the respondent [the employee] to show that she had no choice but to leave her position in the appellant company.  The respondent must show the Tribunal that her resignation was not voluntary and that the conduct of her employers was so unreasonable that she had no option but to resign.”

The complainant met with The HR manager and agreed to the commencement of the informal procedure. The HR manager agreed, at the complainant’s behest, to delay the commencement of any procedure for a number of weeks while she received counselling. When The complainant decided, a number of weeks later, not to proceed with the informal route, the Company proposed mediation, to be conducted by an independent, external third party. As a gesture of goodwill, when the complainant was deemed fit to return to work on 3 July 2018, the Company agreed to putting her back on payroll. Regrettably the mediation that took place on 13 July was not successful. Before the Company had an opportunity to commence a formal investigation, the complainant resigned. The Company requested her to remain in employment, and on payroll, while they undertook this formal investigation which would be conducted by an independent, external third party. The complainant refused this request and remain in process. It was a period of time following her resignation that the Company became aware that the complainant had obtained alternative employment on 17 July. This was four days following mediation.

The claim is one of Constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”

Section 7.—(1)

Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures.  In the case of Conway v Ulster Bank, UD 474/1981, the Employment Appeals Tribunal stated:

“the Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible’.

 In the latter case of, McCormack v Dunnes Stores, UD 1421/2008 the importance of exhausting the internal process was repeated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

The complainant alleges that on two occasions she was subjected to verbal abuse and on one occasion physical assault by Ms. D, the General Manager and wife of the Managing Director.  The incident in June,2017 did not directly relate to the complainant. The complainant was however, present at a meeting during which the Ms. D allegedly got annoyed with another employee and asked her to leave the meeting. The complainant was clearly upset by what occurred during that meeting. However, the complainant stated that she agreed with the respondent that no formal action would be taken, as she wanted to allow Ms D time to build up positive relations, within the company. The complainant having agreed not to progress the matter internally cannot now use it to ground her within claim. It was open to her at the time to progress the matter internally. She, for her own personal reasons decided she did not want to. 

The incident in March, 2018 is more complicated.  The parties disagree as to what happened at that meeting. The complainant alleges that Ms D verbally and physically pushed her. The respondent states that the complainant refusal to do as she was asked and her continued arguing at the meeting amounted to insubordination. Ms. D categorically denies putting a hand on the complainant. Whether or not Ms. D put her hand on the complainant is not entirely relevant to this claim. What is relevant is that the complainant believed that she did and the respondent handling of the complaint.

What is not in dispute is that on the following day the complainant when out on ‘work related stress’ sick leave and never returned to work.  The complainant’s allegation of ‘physical contact’ was not disclosed to the respondent until the until the 9th May 2018. Two e-mails sent earlier do not seem to have been received by the respondent. In any event the once the respondent did receive the e-mail they acted quickly to get the issue resolved. A meeting was arranged for the 16^th May. At that meeting the complainant agreed to consider the options put to her by the respondent. The respondent, quite correctly gave her time to consider the options and to recover from her illness. I am satisfied, due to the close family relationship between the managing director and the general manager it was entirely appropriate to deviate from the normal grievance process and appoint an external mediator. I am also satisfied that the process of selecting an external mediator was fair and transparent. The complainant did not seem to have any issue with the respondent’s handling of the situation as she e-mailed them stating “Thank you for keeping me updated. I am appreciated for your help”.  An external mediator was found, and the complainant seemed to be happy with how matters were progressing.  Then, on the 20^th June the complainant’s solicitor wrote to the respondent querying the point of the exercise and pointing out flaws in their deviation from the normal grievance process. Correspondence when back and forth for a number of weeks wherein the complainant’s solicitor seemed to try to frustrate the respondent’s attempts to mediate with the use of an external mediator. On the 9^th July the complainant agreed ‘in principle’ to mediation. On the 10^th July following receipt of an e-mail from the respondent about how the mediator proposes to run the mediation, the complainant’s solicitor writes a letter which I, and the mediator interpret as an allegation of collusion between the mediator and the respondent.

The mediation did take place on the 13^th July however, and not surprising, it was not successful. I note that the complainant handed in her resignation that evening and commenced her new job 17^th July. That role was one that required the complainant to be Garda vetted.  The complainant’s evidence that she applied for that job, was interviewed, accepted the role and was Garda vetted between the 14^th and 17^th July is not creditable. She very clearly had applied for and accepted the role long before the mediation and therefore it cannot be said that she got involved in the process in any meaningful way. To pay lip service to a process in order to improve the optics of this claim is not and could never be deemed as an attempt to ‘exhaust the internal process.

 Following her resignation, the respondent again attempted to resolve her complaints by informing her that they would hire an independent investigator to carry out the investigation into her complainants. She declined the offer.

In all the circumstances. I find that the complainant did not exhaust the internal process and therefore has failed in her obligation to do so. Furthermore, I find that there was no breach of the complainant’s contract of employment and it was not reasonable for her to terminate her contract in the manner that she did. It cannot be said that the employer “conducted themselves or their  affairs so unreasonably that the employee could fairly be expected to put up with it any longer”. The employer did everything that they could to resolve the complainant’s complaint and did so requesting the complainant’s input at every stage of the way.

The complaint is not well founded and accordingly fails.